Forensic Protocol Scope Disputes

Forensic Protocol Scope Disputes Resolved by Court: eDiscovery Case Law

In MMR Constructors, Inc. v. JB Grp. of LA, LLC et al., No. 22-267-BAJ-RLB (M.D. La. Sept. 22, 2023), Louisiana Magistrate Judge Richard L. Bourgeois Jr. ruled on Forensic Protocol scope disputes, by applying some limits to search terms to be used in discovery with respect to non-party custodians and also limited plaintiff’s request for discovery from 22 additional proposed non-party custodians to the five most important potential custodians.

Case Background

In this case involving claims that defendants stole plaintiff’s trade secrets and confidential business information, the district judge entered a Stipulated Preliminary Injunction and required the parties to submit an agreed-upon forensic protocol after the parties identified the electronic devices at issue.

The Court entered into the record a Forensic Protocol, which set forth a list of search terms to collect information from accounts and devices belonging to the defendant company and key individual defendants, and also entered into the record a Protective Order governing the exchange of confidential information.

In April 2023, MMR sought a status conference with the undersigned for the purposes of discussing the following: (1) the parties’ disputes regarding potential additional amendment of the Forensic Protocol, as amended, to add additional “revised” search terms, as well as devices, accounts, and custodians, and (2) modifications of the deadlines in this action given the need to conduct additional discovery. The parties agreed to include devices and accounts of two non-parties as well as the personal e-mail account of one of the individual defendants. Defendant ISG represented that while it had “agreed to image and provide forensic reports” for ISG laptops and e-mail accounts issued to the McCaughey and Huffman, it did not agree to plaintiff’s “expanded search terms” or the addition of certain proposed additional non-party custodians.

The Court granted the motion to set status conference, and required, among other things, the parties to submit a joint status report identifying (1) plaintiff’s proposed additional search terms; (2) plaintiff’s proposed additional devices, accounts, and custodians; and (3) the parties’ proposed amended deadlines.

Plaintiff identified 79 proposed search terms to be conducted on additional custodians, many of which were already included in the Forensic Protocol. Defendant ISG objected to many of these search terms (including terms already agreed to in the Forensic Protocol) as constituting “generic file/file extension terms” or “broad and generic construction industry and contracting terms,” and suggested that they be deleted or, in most circumstances, that the term and connector “and MMR” be added to the search terms. Plaintiff also identified 22 additional proposed non-party custodians.

After additional meetings and status conferences, the only Forensic Protocol scope disputes remaining were (1) the scope of search terms on additional custodians to be used moving forward and (2) whether any of the additional 22 proposed custodians should be subject to the Forensic Protocol.

Judge’s Ruling

Judge Bourgeois ruled on the Forensic Protocol scope disputes, as follows:

Regarding search terms, Judge Bourgeois stated: “The Court agrees with ISG that, for the purposes of searches for non-party custodians, including McCaughey and Huffman, the disputed search terms constitute ‘generic file/file extension terms’ or ‘generic construction industry and contracting terms’ that are not reasonably tailored for discriminating between MMR’s proprietary information and ISG’s proprietary information. The Court recognizes that many of these search terms were agreed-upon by the parties for the purposes of the Forensic Protocol, which was originally designed to locate documents and information solely with respect to the original defendants – ISG and Heroman. The amendment to the Forensic Protocol, which expanded the search to the additional defendants Dardenne, Kraft, Lowe, and Yates, did not modify the search terms. The expansion of searches to non-party custodians, however, merits a limitation of the applied search terms.”

Continuing, he said: “With a couple of exceptions, ISG proposed to add the search term and connector ‘and MMR’ to the disputed search terms. The parties acknowledged, however, that the addition of the ‘and’ connector would not locate any additional documents given that ‘MMR’ is already a stand-alone search term. MMR’s counsel further acknowledged that they are able to identify search terms within the documents produced.”

Ruling on the search terms dispute, Judge Bourgeois stated: “Having considered the arguments of the parties, the Court finds it proportional to the needs of this case to limit additional searches to the undisputed search terms identified in the parties’ May 26, 2023 Amended Joint Status Report. The Court acknowledges MMR’s concern that an ISG employee may have transferred MMR’s proprietary information to an ISG document without including any designation that it was originally an MMR document. In weighing the potential costs to ISG with respect to running the proposed additional search terms, the Court finds that the proposed discovery using the disputed search terms and connectors is disproportionate to the needs of the case.”

Regarding the request for 22 additional custodians, Judge Bourgeois stated: “Given that ISG has already incurred significant expenses with respect to forensic examiner searches, storage of information, and productions to date, the Court is not inclined to order searches of 22 additional non-party custodians, some of which were never employed by MMR. The Court will, however, allow for a limited expansion of the custodians subject to the Forensic Protocol. As discussed above, MMR identified…five individuals as the most important potential custodians…The Court finds it proportionate to the needs of this case to allow for the discovery of these non-party individual’s ISG e-mail accounts and devices.”

So, what do you think? Was this process a good way to minimize and address the Forensic Protocol scope disputes? Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant, an Affinity partner of eDiscovery Today.

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